Article excerpt

Environmental crises are a lot like TV mystery stories -- more fiction than fact. Yet even on television, the plot can't progress if the medical examiner -- a qualified scientist -- says the "victim" wasn't murdered. No corpus delicti, no mystery; no investigation, no trial -- and, above all, no sentence.

In true-life environmental sagas, however, environmentalists, the news and entertainment media, Congress, regulatory agencies and especially lawyers have decided that no corpus delicti is needed.

In this arena, accusations are proof enough, theories equal facts and fear comes disguised as prudence. The significant difference between television mysteries and environmental crises is that, in the latter, truth is the principal victim.

Federal appellate Judge Stephen Breyer, who was touted as a possible Clinton nominee for the Supreme Court, addressed this regulatory nightmare in his Oliver Wendell Holmes lectures at the Harvard School of Law this past fall.

Soon to be published by Harvard University Press under the title Breaking the Vicious Circle: Toward Effective Risk Regulation, his presentation -- 112 pages buttressed by 99 pages of footnotes -- puts forth the first thoroughly documented analysis of this "lawyers versus scientists" struggle that has bedeviled the regulatory process for almost a generation. Our present system of environmental regulation is in chaos, Breyer says -- a chaos created by lawyers seeking solutions to problems that to scientists are minor or nonexistent.

Breyer is telling today's lawyers that regulation driven by logic without facts is insane. Much of the country's environmental regulatory system -- and that is primarily the Environmental Protection Agency -- is run by lawyers who think like lawyers. They argue deductively from the "first principles of. . . fairness or. . . theory," rather than inductively from proven, demonstrable, scientific fact. Until that is changed, he says, "institutional solutions" will be based not on substance, but on logical, legal and quite insane prescriptions.

Consider Agent Orange, allegedly a carcinogen but actually a scapegoat for unresolved anger and guilt over Vietnam. Breyer notes that the judge in a suit over Agent Orange, Jack Weinstein, said the case was scientifically without merit and that it deserved a "directed verdict" in favor of the defendants, the manufacturers.

Instead, the manufacturers settled to get out from under a major public relations crisis. This action richly rewarded lawyers who had done little more than take depositions, and provided the plaintiffs with a few thousand dollars each -- not nearly enough to compensate for any real harm but enough to win grumbling acquiescence.

Look at toxic waste. Breyer presided over a New Hampshire case that dragged on for 10 years and generated 40,000 pages of documentation. About $9.3 million was spent to make a dump safe for "children to eat small amounts of dirt" for 245 -- rather than 70 -- days a year. "But there were no dirt-eating children in the area," Breyer observes. "It was a swamp."

The classic example is asbestos, which the U.S. government is trying to eliminate through a massive removal program estimated to cost $150 billion to $200 billion. Asbestos is alleged to cause 58,000 to 75,000 deaths a year, primarily from cancer. But the reality is quite different.

Quoting the 5th U.S. Circuit Court of Appeals in New Orleans, which overthrew a ban on asbestos by the EPA last year, Breyer says that "over the next 13 years, we can expect more than a dozen deaths from ingested toothpicks [emphasis in the original] -- a death toll more than twice what the EPA predicts from asbestos pipe, shingles and roof coatings. …

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